SCC Denies Leave to Appeal in Nova Scotia Cap Case

On May 27, 2010, the Supreme Court of Canada denied leave to appeal the decision of the Nova Scotia Court of Appeal that unanimously upheld the province's legislative limits on damages for pain and suffering arising from a motor vehicle accident.

The matter dates back to amendments that were made to the Nova Scotia Insurance Act and associated Regulations in 2003, the effects of which limit such recovery for pain and suffering for “minor injuries” to $2,500.

After a month-long hearing in 2008, Justice Walter Goodfellow of the Supreme Court of Nova Scotia concluded that the impugned legislation does not violate the guarantee of equality as protected by the Canadian Charter of Rights and Freedoms; the claimants had alleged that the legislation in issue discriminated on the basis of age, sex, mental disability or physical disability. Justice Goodfellow further rejected argument that the impugned Regulations are ultra vires the enabling statute or otherwise beyond the legitimate authority of the Governor in Council.

In dismissing the appeal of Justice Goodfellow's decision, the Nova Scotia Court of Appeal (MacDonald C.J., Hamilton and Beveridge JJ.A.) affirmed the constitutional and jurisdictional validity of the statutory regime in its entirety. That decision, rendered in December 2009, came on the eve of a related pronouncement from the Supreme Court of Canada, denying leave to appeal from a judgment of the Alberta Court of Appeal that constitutionally upheld similar legislative limits in that province.

The following were involved in the defence of this constitutional challenge at all levels of court: Alex Cameron, on behalf of the Attorney General of Nova Scotia; Jeff Galway and Rahat Godil of Blake, Cassels & Graydon LLP, on behalf of the Insurance Bureau of Canada; and Geoffrey Machum, QC, Christa Brothers and Scott Campbell of Stewart McKelvey on behalf of Aviva.

The claimants were represented by Barry Mason and Glenn Jones of Pressé Mason and Jamie MacGillivray and Janus Siebrits of MacGillivray Law.